Akademik Veri Yönetim Sistemi
Medenî Usûl ve İcra - İflâs Hukuku Dergisi, cilt.56, sa.19, ss.751-780, 2023 (TRDizin)
The principle known as "Verhandlungsgrundsatz" in German civil procedural law, attributed to Nikolaus Thaddäus Gönner, asserts that the judge's actions in the trial, which is also claimed to be valid in common law, depend on the parties. According to this principle, the judge cannot act on their own (ex officio) and is bound to the parties. In contrast, in Prussian law, it is argued that the judge can act independently (ex officio) without being bound to the parties, as claimed by Gönner. This study will examine the grounds for the doctrinal view that Gönner's advocated pure principle of bringing by the parties is not valid and possible. Firstly, the study will determine whether the role of the judge in the collection of litigation materials in common procedural law and Prussian procedural law is a result of the historical development within the framework of their perspective on the matter. Secondly, opinions on the influence of the fundamental understanding in substantive law on civil procedural law will be expressed. Gönner's thoughts on functionality (Zweckmäßigkeit) along with the views that the principle of bringing by the parties is a pragmatic necessity for the effective conduct of litigation will be evaluated in relation to existing legal restrictions that hinder the dominance of the parties in litigation.